Teague v. Lane Petition for Writ of Certiorari

    No.
IN THE

SUPREME COURT OF UNITED STATES

October Term, 1986

FRANK DEAN TEAGUE, 
Petitioner,
v.

MICHAEL LANE, Director, Department of Corrections, 
and MICHAEL O'LEARY, Warden, Stateville Correctional 
Center,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

STEVEN CLARK 
Deputy Defender
*PATRICIA UNSINN
Assistant Appellate Defender
Office of the State Appellate Defender
State of Illinois Center
100 West Randolph St., Suite 5-500
Chicago, Illinois 60601
(312) 917-5472
COUNSEL FOR PETITIONER

*COUNSEL OF RECORD

iMUpW ' i ' U  • > m . ljmjjJiC.w



QUESTIONS PRESENTED FOR REVIEW
Whether the Sixth Amendment fair cross-section requirement 

prohibits the prosecution's racially discriminatory use of the 
peremptory challenge.

Whether Batson should be applied retroactively to all 
convictions not final at the time certiorari was denied in McCray 
v. New York in order to correct the inequity and confusion 
resulting from the intentional postponement of the re-examination 
of Swain.

Whether a defendant overcomes the presumption of correctness 
of the prosecution's proper use of its peremptory challenges, as 
recognized by Swain v. Alabama, where examination of the 
prosecutor's volunteered reasons for its exercise of its chal­
lenges to exclude black jurors demonstrates that the prosecution 
has engaged in racial discrimination.

i

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TABLE OF CONTENTS

Questions Present for Review................................ j_
Table of Contents...........................................  £j_
Table of Authorities........................................  j_ii
Introduction................................................  1
Opinion Below...............................................  1
Statement of Jurisdiction...................................  i
Constitutional Provisions Involved.......................... 2
Statement of the Case.......................................  2
Reasons for Allowance of Writ............................... 5

WHETHER THE SIXTH AMENDMENT FAIR CROSS-SECTION 
REQUIREMENT EXTENDS TO THE PETIT JURY SO AS TO BAR 
THE RACIALLY DISCRIMINATORY USE OF THE PEREMPTORY 
CHALLENGE IS A RECURRING QUESTION ON WHICH THIS 
COURT EXPRESSED NO VIEW IN BATSON, BUT WHICH 
REMAINS CONTROVERSIAL, RESULTING IN CONFLICTING 
DECISIONS FROM BOTH STATE AND FEDERAL COURTS, THUS 
MERITING THIS COURT'S REVIEW..'........................  6
BATSON SHOULD BE APPLIED RETROACTIVELY TO ALL
CONVICTIONS NOT FINAL AT THE TIME CERTIORARI WAS
DENIED IN McCRAY v. NEW YORK IN ORDER TO CORRECT
THE INEQUITY AND CONFUSION WHICH RESULTED WHEN
THIS COURT, WHILE SIGNALING THAT SWAIN WAS NO
LONGER DISPOSITIVE, INTENTIONALLY DELAYED A
DECISION ON THE ISSUE RESOLVED BY BATSON..............  8
THE DIRECT CONFLICT BETWEEN THE DECISIONS OF THE 
EIGHT AND NINTH CIRCUIT COURTS OF APPEALS AND THE 
SEVENTH CIRCUIT COURT OF APPEALS, REGARDING WHETHER 
AN EQUAL PROTECTION VIOLATION MAY BE PROVEN PURSUANT 
TO SWAIN v. ALABAMA, OTHER THAN BY PROOF OF A 
SYSTEMATIC EXCLUSION OF BLACK JURORS BY PEREMPTORY 
CHALLENGE IN CASE AFTER CASE, A QUESTION LEFT OPEN BY
SWAIN, SHOULD BE RESOLVED BY THIS COURT...............  11

Conclusion..................................................  13
Appendix A

Unpublished and vacated panel decision of the Seventh 
Circuit Court of Appeals reversing district court
Appendix B

Order of Seventh Circuit Court of Appeals directing 
rehearing en banc, reported at 779 F.2d 1332 (1985)
Appendix C

Opinion of the en banc United States Court of Appeals 
for the Seventh Circuit, reported at 820 F.2d 832 (1987)
Appendix D

Unpublished order of the United States District Court for 
the Northern District of Illinois denying habeas corpus relief 
to Petitioner, dated August 8, 1984.

ii

/



TABLE OF AUTHORITIES

CASES PAGES
Allen v. Hardy, 106 S.Ct. 2878 (1986).............  7
Apodaca v. Oregon, 406 U.S. 404 (1972)............  7
Ballew v. Georgia, 435 U.S. 223 (1978)............  7
Batson v. Kentucky. 106 S.Ct. 1712 (1986).........  passim
Booker v.Jabe, 775 F.2d 762 (6th Cir. 1985), vacated,

106 S.Ct. 3289, aff'd on reconsideration, 801 F.2d 
871 (1980), cert, denied, 106 S.Ct. 3289......  6, 7

Desist v. United States. 394 U.S. 244 (1969).......  8
Fields v. People, 732 P.2d 1145 (Colo. 1987).......  7
Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987)....  12
Granberry v. Greer, 95 L.Ed.2d 119 (1987)..........  13
Griffith v. Kentucky. 107 S.Ct. 708 (1987).........  8, 9
Lockhart v. McCree, 106 S.Ct. 1758 (1986)..........  7
Mackey v. United States, 401 U.S. 667 (1971).......  8, 9, 10
McCray v. Abrams, 750 F.2d 1113 (2nd Cir. 1984)....  7
McCray v. New York, 461 U.S. 961 (1983)............  9
Roman v. Abrams, 41 CrL 2245 (2nd Cir. 6/9/87)....  6, 7
Taylor v. Louisiana, 419 U.S. 522 (1975)........... 7
Solem v. Stumes, 465 U.S. 638 (1984)...............  10
Swain v. Alabama, 380 U.S. 202 (1965)..............  9, 11, 12
Ulster County Court v. Allen, 442 U.S. 140 (1979)... 13
United States v. Johnson, 457 U.S. 537 (1982)....... 10
United States ex rel. Yates v. Hardiman, 656 F.Supp.1006 ( U . m :  1987).. “ T .'........... .. 6, 7
Wainwright v. Sykes, 433 U.S. 72 (1977).............  13
Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983).. 12

iii



No.
IN THE

SUPREME COURT OF UNITED STATES 

October Term, 1986

FRANK DEAN TEAGUE,
Petitioner, 
v.

MICHAEL LANE, Director, Department of Corrections, 
and MICHAEL O'LEARY, Warden, Stateville Correctional 
Center,

Respondents.

INTRODUCTION

TO THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT 
OF THE UNITED STATES:

May it Please the Court:
Petitioner, Frank Dean Teague, respectfully prays that this 

Court issue a writ of certiorari to review the en banc decision 
of the United States Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The original panel opinion reversed the district court's 
denial of habeas corpus relief. That panel decision is unreport­
ed but is attached to this Petition as Appendix A. The panel 
opinion was vacated and the cause was set for rehearing en banc 
pursuant to Circuit Court Rule 16(e). That order is reported at 
779 F.2d 1332 (7th Cir. 1985) and is attached as Appendix B. On 
May 11, 1987, the en banc Court of Appeals affirmed the decision 
of the district court denying habeas corpus relief, Cudahy and 
Cummings, JJ., dissenting. That opinion is reported at 820 F.2d 
832 (7th Cir. 1987) and is attached as Appendix C. The district 
court order granting summary judgment in favor of Respondents is 
unreported and attached as Appendix D.

STATEMENT OF JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28
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U.S.C. 1254(1). This Petition is being filed within 90 days of 
the decision of the Court of Appeals, which issued on May 11, 
1987.

CONSTITUTIONAL PROVISIONS INVOLVED 

AMENDMENT VI
In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial, by an impartial jury of the 
State and district wherein the crime shall have been committed, 
which district shall have been previously ascertained by law, and 
to be informed of the nature and cause of the accusation; to be 
confronted with the witnesses against him; to have compulsory 
process for obtaining witnesses in his favor, and to have the 
assistance of counsel for his defense.

AMENDMENT XIV
Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of 
the United States and-of the State wherein they reside. No State 
shall make or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States; nor shall any 
State deprive any person of life, liberty, or property without 
due process of law; nor deny to any person within its 
jurisdiction the equal protection of laws.

STATEMENT OF THE CASE

Frank Teague, a black man, was convicted of the offense of 
armed robbery of an A & P supermarket and attempt murder of 
police officers who were shot at following the robbery. His 
defense was insanity which he contended was caused in part by his 
wrongful incarceration in a federal penitentiary for almost eight 
years. The jurors who were selected and sworn to decide the 
issue of his guilt or innocence were white, the prosecution 
having elected to exercise all ten of the peremptory challenges 
afforded it by statute, 111.Rev.Stat., Ch. 38, Sec. 115-4(e), to 
excuse prospective jurors who were black. Defense counsel also 
excused a prospective black juror because she was married to a

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police officer and his client was charged with attempt murder of 
police officers. (R. 97)

When objection was made during jury selection to the prose­
cution's use of its peremptory challenges to exclude blacks from 
the jury, the prosecutor represented that he was attempting to 
achieve a balance of men and women and age groups, noting also 
defense counsel's use of a single peremptory to excuse a prospec­
tive black juror and that the prosecution had also excused a 
white juror who was a prospective alternate. (R. 97, 98, 177,
178) The trial judge made no finding with respect to the validi­
ty of the State's reasons for exercise of its challenges, but the 
record refutes the contention that blacks were eliminated from 
the jury in an effort to achieve sexual and age balance. See 
Appendix A, panel opinion, pp. 24-27.

Although not disputing that the prosecution had utilized its 
peremptory challenges solely for the purpose of excluding a 
racial group from the jury, the Illinois Appellate Court conclud­
ed that Teague was not entitled to any relief from his conviction 
because he had made no showing of systematic exclusion of the 
group as required by Swain v. Alabama, 380 U.S. 202 (1965). The 
Court declined to follow People v. Wheeler, 22 Cal. 3d 258, 584 
P.2d 748 (1978) on the basis that the remedy it proposed was 
vague and uncertain and would alter the nature of the peremptory 
challenge. The Court concluded that abolition of the peremptory 
challenge by the legislature would be the appropriate means to 
end the prosecution's practice of using its challenges to exclude 
a racial group. People v. Teague, 108 Ill.App.3d 891, 439 N.E.2d 
1066 (1st Dist. 1982)(Campbell, J. dissenting). The Illinois 
Appellate Court denied a Petition for Rehearing and the Illinois 
Supreme Court denied leave to appeal. People v. Teague, 449 
N.E.2d 820 (111. 1983)(Simon,J. dissenting). This Court denied a 
Petition for Writ of Certiorari. Teague v. Illinois, 464 U.S.
867 (1983)(Marshall and Brennan, JJ., dissenting).

On March 5, 1984, Petitioner filed a Petition for Writ of 
Habeas Corpus in the United States District Court for the North­
ern District of Illinois, complaining that his Sixth and Four­
teenth Amendment rights were violated when the prosecution

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utilized its peremptory challenges to exclude black jurors. In 
his Brief submitted in support of the Petition, Teague asked the 
district court to accept the invitation of this Court in McCray 
v. New York, 461 U.S. 961 (1983) to re-examine the issue of 
whether the Constitution prohibits the use of peremptory chal­
lenges to exclude a racial group from the jury and to conclude 
that an accused is denied his right to a jury drawn from a fair 
cross section of the community when the prosecutor employs 
peremptory challenges to exclude jurors on the basis of race. 
(Petitioner's Brief, p .  16) Petitioner also cited in support of 
his argument McCrav v. Abrams, 576 F.Supp. 1244 (E.D.N.Y.1983), 
which held that the Equal Protection Clause, either alone or in 
in conjunction with the Sixth Amendment, prohibits the racially 
discriminatory use of the peremptory challenge. (Petitioner’s 
Brief, p. 15) Respondents moved for summary judgment, contending 
Swain v. Alabama, 380 U.S. 202 (1965) controlled. (Memorandum in 
Support of Respondents' Motion for Summary Judgment) Petitioner 
cross-moved for summary judgment and cited in support thereof 
Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983), wherein the 
Court held that if a prosecutor volunteers explanations for his 
challenges, those explanations may be reviewed to determine 
whether there has been a perversion of the peremptory challenge 
contrary to Swain. (Memorandum In Support of Cross-Motion, p. 6) 
The district court on August 8, 1984 granted summary judgment in 
favor of Respondents, concluding that although it found Petition­
er's arguments persuasive and might be inclined to adopt his 
reasoning if the court were writing on a clean slate, the issue 
was foreclosed by Swain and Seventh Circuit decisions declining 
to depart from Swain. (Order p. 2)

In the Court of Appeals, Petitioner again urged that Swain 
be re-examined and a procedure such as that outlined by the 
Courts in McCray v. Abrams or Weathersby v. Morris be adopted 
whereby an accused could complain of the prosecutor's racially 
discriminatory use of peremptory challenges in a single case. 
(Appellant's Brief, pp. 15, 25) A divided panel concluded that 
the Sixth Amendment does bar the racially discriminatory use of 
peremptory challenges so as to deprive an accused of the fair

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possibility of obtaining a representative jury, but that opinion 
was vacated and the case set for rehearing en banc pursuant to 
Circuit Rule 16(e). U.S. ex rel. Teague v. Lane, 779 F.2d 1332 
(7th Cir.1985).

Following the decision of this Court in Batson v. Kentucky. 
106 S.Ct. 1712 (1986), the parties were directed by the Court of 
Appeals to file additional memoranda discussing the impact of 
Bats°n on this case. Petitioner argued that his Sixth Amendment 
claim remined viable (Memorandum of Appellant, pp. 3-7) and that 
even if it would be determined that Batson would not be given 
full retroactive effect, Batson should apply to all cases, 
including Petitioner's, not yet final at the time certiorari was 
denied in McCray v. New York, 461 U.S. 961 (1983). (Memorandum of 
Appellant, pp. 14-18) In response to Respondents' argument, made 
for the first time in its post-Batson memorandum, that Petitioner 
had waived any equal protection claim by a procedural default in 
the state court (Memorandum of Respondents, pp. 2-6), Petitioner 
argued there had been-no procedural default, whether or not the 
equal protection claim had been raised in state court, because 
that claim had been rejected on its merits by the state court, 
which had denied Petitioner relief on the grounds that Swain 
controlled. Petitioner cited Ulster County Court v. Allen, 442 
U.S. 140 (1979), United States ex rel. Ross v. Franzen, 688 F.2d 
1181 (7th Cir. 1982) and Thomas v. Blackburn, 623 F.2d 383 (5th 
Cir. 1980) as support for this argument. (Responsive Memorandum, 
pp. 3-4) Following en banc reargument, the Court of Appeals de­
termined that Allen v. Hardy, 106 S.Ct. 2878 (1986) foreclosed 
retroactive application of Batson to Petitioner, Teague v. Lane, 
820 F.2d 832, 834 and n.4 (1987), that Petitioner had not made a 
showing of an equal protection violation pursuant to Swain, even 
assuming that claim was not procedurally barred by Wainwright v. 
Sykes, 433 U.S. 72 (1977), 829 F.2d at 834 n.6, and that the 
Sixth Amendment fair cross-section requirement was inapplicable 
to the petit jury.

REASONS FOR ALLOWANCE OF WRIT

WHETHER THE SIXTH AMENDMENT FAIR CROSS-SECTION REQUIREMENT

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EXTENDS TO THE PETIT JURY SO AS TO BAR THE RACIALLY DIS­
CRIMINATORY USE OF THE PEREMPTORY CHALLENGE IS A RECURRING
QUESTION ON WHICH THIS COURT EXPRESSED NO VIEW IN BATSON» *-----
BUT WHICH REMAINS CONTROVERSIAL, RESULTING IN CONFLICTING
DECISIONS FROM BOTH STATE AND FEDERAL COURTS, THUS MERITING
THIS COURT'S REVIEW.

Petitioner was tried by an all white jury as a consequence 
of the prosecution's use of all ten of its peremptory challenges 
to exclude black jurors. Petitioner contends the prosecution's 
racially discriminatory use of its challenges violated his Sixth 
Amendment right to be tried by a jury drawn from a fair cross 
section of the community. Petitioner does not complain that the 
jury that was chosen in his case did not mirror the community or 
insist that he is entitled to a jury of any particular composi­
tion, but contends that the fair cross-section requirement 
prohibits the prosecution's use of peremptory challenges in a 
racially discriminatory manner to unreasonably restrict the 
possibility the jury is comprised of a fair cross section of the 
community. This issue was expressly left undecided by this Court 
in Batson v. Kentucky, 106 S.Ct. 1712, 1716 n.4 (1986), and 
considerable conflict exists among the circuit courts of appeals 
and other courts regarding whether the prosecution's racially 
discriminatory use of the peremptory challenge violates the Sixth 
Amendment. Therefore, it is appropriate that this Court grant 
certiorari.

Both the Second and Sixth Circuit Courts of Appeals have 
adopted the view that the Sixth Amendment fair cross-section 
requirement extends to the petit jury so as to bar the prose­
cution's use of the peremptory challenge on the basis of race. 
Roman v. Abrams, 41 CrL 2245 (2nd Cir. 6/9/87); Booker v. Jabe, 
775 F.2d 762 (6th Cir. 1985), vacated, 106 S.Ct. 3289, aff’d on 
reconsideration, 801 F.2d 871 (1986), cert, denied, 107 S.Ct.
910. The split among the circuit courts of appeals and various 
state courts on this issue was noted in United States ex rel. 
Yates v. Hardiman, 656 F.Supp. 1006, 1012 (N.D.I11. 1987), which 
court concluded that the fair cross-section requirement is 
violated where jurors are peremptorily challenged by the

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prosecution because they are the same race as the defendant. See 
also Fields v. People. 732 P.2d 1145 (Colo. 1987)(claim of 
racially discriminary use of peremptory challenges subject to 
Sixth Amendment analysis).

The Seventh Circuit Court of Appeals rejected Petitioner's 
argument on the grounds that the fair cross-section requirement 
has no applicability to the petit jury, only to the venire from 
which the petit jury is drawn. Teague, 820 F.2d at 839. While 
Lockhart v. McCree, 106 S.Ct. 1758 (1986) has been interpreted as 
supporting that position, the question was left unresolved in 
Lockhart since this Court determined Witherspoon-excludables were 
not a distinctive group in the community for Sixth Amendment 
purposes. 106 S.Ct. at 1765. That this Court vacated and 
remanded McCray v. Abrams, 750 F.2d 1113 (2nd Cir. 1984) and 
Booker v. Jabe, 775 F.2d 762 (1985) in light of Allen v. Hardy, 
106 S.Ct. 2878 (1986) and Batson v. Kentucky, 106 S.Ct 1712 
(1986), and not in light of Lockhart, has also been held 
indicative of an absence of intent that Lockhart settles the 
Sixth Amendment issue. Yates, 656 F.Supp. at 1015.

Prior decisions of this Court provide a basis to conclude 
that the fair cross-section requirement extends beyond the jury 
venire. In Apodaca v. Oregon, 406 U.S. 404, 413 (1972), this 
Court expressed the view that the fair cross-section requirement 
forbids "systematic exclusion of identifiable segments of the 
community from jury panels and from the juries ultimately drawn 
from those panels." (Emphasis added) Louisiana's special ex­
emption for women was held to violate the Sixth and Fourteenth 
Amendments in Taylor v. Louisiana, 419 U.S. 522, 538 (1975) not 
merely because women were thereby excluded from the jury pool but 
because it "operate[d] to exclude them from petit juries." Trial 
by jury of less than six person was held to violate the Sixth 
Amendment in Ballew v. Georgia, 435 U.S. 223, 237 (1978) because 
it deceases the opportunity for meaningful and appropriate 
representation of a cross section of the community on the petit 
jury, not on the panel or venire from which the jury is drawn.

Permitting the prosecution to exercise its peremptory 
challenges to excuse perspective jurors on the basis of race

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alone similarly violates the fair cross-section requirement 
because it presents no less an obstacle to the possibility of 
minority representation on the jury. Selection of a jury drawn 
from a fair cross section of the community is not an end in 
itself, but contemplates the possibility that the petit jury will 
be similarly comprised. The fair cross-section requirement would 
be illusory if no restriction existed on the ability of the 
prosecution to interpose an obstacle to minority representation 
on the petit jury so long as minorities were not excluded from 
the venire.

The controversy over the continued vitality of the Sixth 
Amendment analysis to the peremptory challenge issue persists. A 
direct conflict exists among the circuit courts of appeals 
regarding whether the fair cross-section requirement can have any 
applicability to the petit jury. This Court declined to adopt 
any view on this issue in Batson but the continued divergence of 
opinions demands that this Court grant certiorari to finally 
resolve the dispute.

BATSON SHOULD BE APPLIED RETOACTIVELY TO ALL CONVICTIONS 
NOT FINAL AT THE TIME CERTIORARI WAS DENIED IN McCRAY 
v. NEW YORK IN ORDER TO CORRECT THE INEQUITY AND 
CONFUSION WHICH RESULTED WHEN THIS COURT, WHILE SIGNALING 
THAT SWAIN WAS NO LONGER DISPOSITIVE, INTENTIONALLY DELAYED 
A DECISION ON THE ISSUE RESOLVED BY BATSON.

In Griffith v. Kentucky, 107 S.Ct. 708 (1987), this Court 
extended the benefits of Batson v. Kentucky, 106 S.Ct. 1712 
(1986) to all cases pending on direct review or not yet final at 
the time the decision in Batson was reached. In a concurring 
opinion, Justice Powell expressed his agreement with the views of 
Justice Harlan respecting rules of retroactivity as stated in 
Mackey v. United States. 401 U.S. 667, 675 (1971)(Harlan, J. 
concurring and dissenting) and Desist v. United States, 394 U.S. 
244, 256 (1969)(Harlan, J. dissenting), and his hope that, when 
squarely presented with the question, the Harlan view that habeas 
petitions should generally be judged according to the constitu­
tional standards existing at the time of the conviction, would be

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adopted by the Court. Griffith, 107 S.Ct. at 716 (Powell, J., 
concurring). Petitioner submits that this case squarely 
p-resentes the issue of the retroactivity of decisions to habeas 
petitions and asks that a rule of retroactivity be adopted to 
extend the benefits of Batson to those habeas corpus petitioners, 
including Petitioner herein, whose cases were not yet final at 
the time this Court denied certiorari in McCray v. New York. 461 
U.S. 961 (1983).

In Harlan's view, generally, the law prevailing at the time 
a conviction became final is to be applied in adjudicating habeas 
petitions. The justification for extending the scope of habeas 
to all alleged constitutional errors being to force trial and 
appellate courts in the federal and state system to toe the 
constitutional mark, it is unnecessary to apply new constitution­
al rules on habeas to serve that interest. Mackey, 401 U.S. at 
688.

At the time Petitioner's conviction became final,^ the state 
of the law respecting a prosecutor's discriminatory use of 
peremptory challenges was uncertain. When certiorari was denied 
in McCray v. New York, 461 U.S. 961 (1983), Justices Brennan and 
Marshall dissented, while Justices Stevens, Powell and Blackman 
joined in an opinion stating they recognized the importance of 
the issue presented, but believed further consideration of the 
problem by other courts would enable the Court to address the 
problem more wisely at a later date and asked that the various 
states serve as laboratories in which the issue would receive 
further study before it was finally addressed. This concurrence, 
coupled with the dissent, signaled that the state courts were no 
longer bound by Swain v. Alabama, 380 U.S. 202 (1965). At the 
same time the Court intentionally delayed resolution of the issue 
on the assumption that lower courts would accept the Court's 
invitation to re-examine the issue on its merits, an assumption 
which proved to be untrue in Illinois which continued to hold the 
issue foreclosed by Swain.

^Certiorari was denied in McCray on May 31, 1983. Petitioner's 
conviction became final when certiorari was denied on October 3, 
1983.

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Just as Justice Harlan found it indefensible for the Court 
to "[fish] one case from the stream of appellate review, [use] it 
as a vehicle for pronouncing new constitutional standards, and 
then [permit] a stream of similar cases to flow by unaffected by 
that new rule," Mackev, 401 U.S. at 679 (Harlan, J., dissenting), 
it is indefensible to fish one case from the stream of appellate 
review, signal that a change is forthcoming, yet leave it entire­
ly to the discretion of lower courts whether to follow precedent 
that was at that point questioned or discredited, though not 
expressly overruled. In intentionally delaying a decision, this 
Court increased the possibility that different constitutional 
protection would be meted out to defendants simultaneously 
subjected to identical constitutional deprivation, which is 
inconsistent with the goal of treating similarly situated defen­
dants similarly. United States v. Johnson, 457 U.S. 537, 556
(1982) . Moreover, since the opinion of Justice Stevens 
respecting the denial of certiorari in McCray made it difficult 
if not impossible for. lower courts to discern what was the 
prevailing state of the law since they were cast in the role of 
laboratories where the law was open to experimentation, lower 
courts were unable to determine after McCray if they were "toeing 
the constitutional mark." Solem v.Stumes, 465 U.S. 638, 653
(1983) . The failure of this Court to provide firm guidance to 
the lower courts from the time of denial of certiorari in McCray 
until Batson compels the conclusion that if Batson is to be given 
limited retroactive effect, it should be measured from the date
of denial of certiorari in McCray and be held applicable to all

2cases then pending on direct review. The inequity and confusion 
which resulted from the Supreme Court's intentional postponement 
of resolution of the issue of the vitality of Swain can only be 
corrected by extension of the benfits of Batson to all those thus 
affected.

This holding would be consistent with this Court's
resolution of Allen v. Hardy , 106 S.Ct. 2878 (1986) inasmuch as
Allen's conviction was final when certiorari was denied inMcCray.

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THE DIRECT CONFLICT BETWEEN THE DECISIONS OF THE EIGHTH 
AND NINTH CIRCUIT COURTS OF APPEALS AND THE SEVENTH CIRCUIT 
COURT OF APPEALS REGARDING WHETHER AN EQUAL PROTECTION 
VIOLATION MAY BE PROVEN PURSUANT TO SWAIN v. ALABAMA 
OTHER THAN BY PROOF OF A SYSTEMATIC EXCLUSION OF BLACK 
JURORS BY PEREMPTORY CHALLENGE IN CASE AFTER CASE, A 
QUESTION LEFT OPEN BY SWAIN, SHOULD BE RESOLVED BY 
THIS COURT.

Even should this Court decline to hold Batson v, Kentucky, 
106 S.Ct. 1712 (1986) has any retrospective application to his 
case, Petitioner contends that he is entitled to relief from his 
conviction because the record establishes an equal protection 
violation pursuant to Swain v. Alabama, 380 U.S. 202 (1965). In 
Swain, this Court reaffirmed that a "State's purposeful or 
deliberate denial to Negroes on account of race of participation 
as jurors in the administration of justice violates the Equal 
Proctection Clause." 380 U.S. at 204. However, after reviewing 
the purpose and function of the peremptory challenge system, it 
concluded that a presumption must exist in any particular case 
that the prosecution is using its challenges to obtain a fair and 
impartial jury to try the case before the court, and that this
presumption would not be overcome by allegations that all the
Negroes had been removed or that they were removed because they 
were Negroes. 380 U.S. at 222. The Court did agree that the 
presumption of proper use might be overcome if a prosecutor in a 
county, in case after case, whatever the circumstances, whatever 
the crime and whoever the defendant or victim may be, is respon­
sible for the removal of Negroes with the result that none ever
serve on petit juries. 380 U.S. at 223, 224. Swain did not limit 
a defendant's demonstration of a perversion of the peremptory 
challenge amounting to an equal protection violation to proof of 
such circumstances, but merely acknowledged such proof would 
overcome the presumption of proper use. The question remains, 
therefore, as to what other circumstances might demonstrate 
purposeful discrimination by a prosecutor in his use of his 
challenges.

Petitioner contends that where a prosecutor volunteers his
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reasons for exercising his peremptory challenges, the prosecutor 
is no longer cloaked with the presumption of correctness, but 
opens up the issue and the court may review his motives to 
determine whether the purposes of the peremptory challenge are 
being perverted. The court must then be satisfied that the 
challenges are being exercised for permissible trial-related 
considerations, and that the proffered reasons are genuine ones 
and not merely a pretext for discrimination. The Ninth and 
Eighth Circuit Courts of Appeals have both held that a defendant 
may establish a violation of the equal protection principles of 
Swain by such a method. Weathersby v. Morris, 708 F.2d 1A93 (9th 
Cir. 1983); Garrett v. Morris, 815 F.2d 509 (8th Clr. 1987). The 
Seventh Circuit Court of Appeals in Petitioner's case refuses "to 
read Swain so broadly," and insists that absent evidence that 
establishes a pattern of systematic exclusion of blacks larger 
than the single case there is no basis for an equal protection 
challenge even if it could be demonstrated that the prosecution 
exercised its peremptories on the basis of race. Teague, 820 F.2d 
at 834 n.6. This interpretation of Swain is questionable in light 
of the fact that the Batson Court attributed the requirement of 
proof of repeated striking over a number of cases to lower 
courts, 106 S.Ct. at 1720, and Justice White, author of the Swain 
opinion, noted in his Batson concurrence that it would not be 
"inconsistent with Swain for the trial judge to invalidate 
peremptory challenges of blacks if the prosecutor, in response to 
an objection to his strikes, stated that he struck blacks because 
he believed they were not qualified to serve as jurors, 
especially in the trial of a black defendant." Batson 106 S.Ct 
at 1725 n.* (White, J., concurring). Certiorari jurisdiction 
should therefore be exercised by this Court to resolve the direct 
conflict which exists among the circuit courts of appeals 
regarding whether an equal protection violation may be found, 
consistent with Swain, in circumstances other than where a 
systematic pattern of exclusion occurs over a large number of 
cases, a question which is not resolved by Swain or Batson.

Although the Seventh Circuit opinion in this case states

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.y > * .
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procedurally barred pursuant to Wainwright v. Sykes, 433 U.S. 72 
(1977), this circumstance does not make it inappropriate for this 
Court to grant certiorari. Not only did the State waive this 
argument by failing to raise this objection when Weathersby was 
cited and argued by Petitioner in the district court and court of 
appeals, but the court of appeals reached this argument on its 
merits. Cf Granberry v. Greer, 95 L.Ed.2d 119 (1987). Moreover, 
since Petitioner was denied relief in the state court on the 
ground that a Swain equal protection analysis controlled the 
result, Teague, 439 N.E. at 1070, thus rejecting any equal 
protection claim on its merits, there has been no procedural 
default which bars the federal courts from addressing this issue. 
Ulster County Court v. Allen, 442 U.S. 140 (1979).

CONCLUSION
Wherefore, Petitioner, Frank Dean Teague, prays that a writ 

of certiorari issue to the United States Court of Appeals for the 
Seventh Circuit.

Respectfully submitted,

STEVEN CLARK 
Deputy Defender
PATRICIA UNSINN
Assistant Appellate Defender
Office of the State Appellate Defender
State of Illinois Center
100 West Randolph St., Suite 5-500
Chicago, Illinois 60601
COUNSEL FOR PETITIONER

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